Official blog of the HR Florida State Council, Inc.

Living and working in Florida has many advantages, but each year brings a new hurricane season and the threat of potentially damaging storms. An employer’s hurricane preparations should include awareness of the employment laws, which might be implicated in the event of a storm as well as planning to address storm-related issues.

This article summarizes common issues that often arise in the context of a hurricane or tropical storm. Of course, this information is not intended to as legal service. Employers should consult with experienced counsel to ensure appropriate familiarity with potential issues prior to taking action, which could result in legal exposure or liability.

Fair Labor Standards Act

The Fair Labor Standards Act (FLSA) – the federal overtime and minimum wage law – is often implicated when a storm is approaching or has already made landfall.

Non-exempt employees. For nonexempt or hourly employees entitled to overtime, the employer is not required to pay such employees if the business is closed due to a storm, although the employees may be entitled to receive accrued paid time off (PTO) during that period. However, employees working under a “fluctuating workweek agreement,” which involves a minimum salary for up to 40 hours with “half-time” for overtime hours (instead of the typical time-and-one-half), are generally required to be paid the minimum salary for any workweek in which they perform any work.

The FLSA requires employers to keep and maintain accurate time and payroll records, but the law does not specifically address how to proceed if such records are lost or destroyed in a storm. An employer could pay employees based on the number of hours normally worked. A likely better solution would be to ask each employee to accurately estimate the hours worked, while obtaining written authorization to make corrections should more accurate time records be found.

Exempt employees. If a business is closed for less than a full week due to a storm, then salaried-exempt employees should receive their full week’s salary if they performed any work during that week. If the business is open but a salary-exempt employee chooses not to work, then the employee does not need to be paid for any day on which the business is open and the employee performs no work. As with non-exempt employees, an exempt employee can use accrued PTO to make up any shortfall.

Safety and Unemployment Issues

Florida law does not expressly protect employees who refuse to work because of an impending storm or because the employee believes it’s unsafe to return to work. However, the federal Occupational Safety and Health Act (OSHA) requires employees to have safe and healthy working conditions. An employee who reasonably believes he or she will be put at imminent risk of danger by being forced to work may file a complaint against the employer with the Occupational Safety and Health Administration, and the employee can request whistleblower protection.

If an employee is laid off due to a natural disaster, the employer’s account is not charged for any resulting unemployment benefits. In one case, the court found that an employee’s failure to report to work without good cause after being expressly ordered to do so due to Hurricane Ivan constituted misconduct connected with work which disqualified the employee from receiving unemployment benefits.

Leave and Accommodation Issues

The Family and Medical Leave Act (FMLA) generally applies to companies with 50 or more employees, although an individual employee cannot be covered until the one year anniversary of employment. A covered employee is entitled to leave under the FMLA for a serious health condition caused by or related to a hurricane or tropical storm. A covered employee is also entitled to leave in order to care for a child, spouse or parent with a serious health condition. Possible storm-related FMLA issues could arise if an employee’s family member requires refrigerated medication or electrical equipment which is not available due to a power outage.

For those employees who are in the National Guard, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the jobs of National Guard personnel called up in the event of a natural disaster.

If an employee has a disability under the Americans with Disabilities Act, or suffers such a disability due to a storm, then the employee may be entitled to a reasonable accommodation if it would not place an undue hardship on the employer’s business.

Put it in Writing

Employee handbooks should include policies and procedures to account for hurricanes, tropical storms and other natural disasters. Such policies should cover the circumstances under which the business will close and reopen, along with procedures for notifying employees and for employees to update the employer on their status or health. The policies may also include job-specific assignments, such as describing which categories of employees will perform particular storm preparation and recovery tasks.

Hope for the Best but Plan for the Worst

A business should not wait until a hurricane warning is declared to begin considering these and other labor and employment law issues. Proper planning can significantly reduce the stress and disruptions which naturally accompany hurricanes and tropical storms, while helping to boost employee morale during difficult times.

Adam S. Chotiner is a Shareholder with Shapiro, Blasi, Wasserman & Hermann, P.A. one of the largest independent full-service litigation and transactional law firms in South Florida. He is Board Certified in Labor and Employment Law by The Florida Bar and oversees the firm’s Labor and Employment Law practice group. He may be reached at (561) 477-7800 or achotiner@sbwh.law.

Over this past weekend, a small group from the HR Florida State Council had the honor of attending the commissioning of the newest Naval destroyer, the U.S.S. Paul Ignatius (DDG 117) at Port Everglades in Fort Lauderdale. The ship’s namesake, Paul Ignatius, spoke at a ceremony on Friday night and the Commissioning on Saturday. At 98-years old, he is a living legend who served as the 59th United States Secretary of the Navy, and previously a Navy lieutenant, and Assistant Secretary of the Army. His late wife, Nancy, is the ship’s sponsor and they were married over 70 years. Nancy was present every step of the way starting at fabrication in 2015 and she christened the ship in 2017. She passed this past January, but it was evident she was there in spirit.

The HR Florida group received our invitations through our partnership with the Florida Employee Support of the Guard and Reserve (ESGR). This ongoing partnership has allowed many HR professionals around our great state to experience military trainings, voyages, parachuting and ceremonies. We have also introduced this powerful organization to our attendees at the annual HR Florida State Conference & Expo to gain a better understanding of recruiting and hiring our veterans and their dependents.

At Friday’s ceremony, Chad Sorenson (HR Florida president-elect) and I also had the honor of meeting Commander Robby D. Trotter, Commanding Officer, and his beautiful wife Pamela, and Lenard D. Cannon, Executive Officer, and his beautiful wife Tina. They all affectionately call Peter Caspari of ESGR “Pops” and his lovely wife Rebecca, “Mom.” They even have the polo-style embroidered shirts to prove it! The Commanders are exceptional gentlemen. Also, during this time, we continued the conversation on how we can support the crew as the ship will be stationed in Jacksonville. The local chapter, SHRM Jacksonville, has graciously “adopted” the ship. We also plan to welcome the 314 brave sailors and their dependents to our great state and will be supporting the dependents with finding local jobs and continuing to educate employers throughout Florida on why hiring veterans is not only a great thing to do, but also makes sense for your business!

The Commissioning Ceremony on Saturday included the presentation of the colors, national anthem, invocation, guest speakers, principal address, placing the ship in commission, setting the first watch, manning the ship and bringing her to life, reporting for duty, breaking the flag, Commanding Officer’s remarks, and benediction. While it was a very hot South Florida morning on the pier, there were numerous times that the responsibility and emotion sent chills down my spine and cold tears streaming down my face. This crew is dedicating themselves, and their families, to protect our freedom, and we need to do all we can do to welcome them to their new home.

This (probably) once in a lifetime experience will be engrained in each of us and we look forward to honoring and serving our new family members in Jacksonville.

Heather “HD” Deyrieux, MSM, SHRM-SCP, SPHR is the Manager – Workforce Planning with Sarasota County Government. As part of the Human Resources Team, she supports over 2,200 employees and 1,100 volunteers. She previously served in the private sector as Director of Talent at Dental Care Alliance, Director of Strategic Development at the International Business Innovation Association (InBIA), and Director of Strategic Planning & Development with the Great Job Spot Network. HD is the current President of HR Florida State Council and has previously served as the President-Elect, Conference Director, Secretary, Treasurer, Emcee and other roles for the conference. Heather earned a Bachelor of Science in General Business and a Master of Science in Management with a concentration in Human Resources at the University of Central Florida. Go Knights!

In the Girlboss article, “5 Managers On What Makes Someone An Instant Hire,” HR Florida State Council President Heather Deyrieux shares insight on what job candidates should do before, during and after an interview to be a cut above the rest.

In her commentary, Heather recommends coming to the interview with ideas. Specifically, she noted considering the following questions: “How can you contribute to adding to the bottom line?” and “Is this in the form of development, cost savings, hiring the right talent, process improvement?”

Additional advice highlighted in the article includes acting confidently during the interview, but not getting too comfortable (e.g., checking your phone) as well as asking specific questions about the role to express you’ve done your research and are interested in the position.

Heather currently serves president of the HR Florida State Council, where she is responsible for establishing policy, strategies, goals, and objectives consistent with those of SHRM. She also provides guidance to elected and volunteer members who are responsible for accomplishing Council and SHRM objectives and is accountable for ensuring all Council activities, goals and objectives are reached.

Heather “HD” Deyrieux, MSM, SHRM-SCP, SPHR is the Manager – Workforce Planning with Sarasota County Government. As part of the Human Resources Team, she supports over 2,200 employees and 1,100 volunteers. She previously served in the private sector as Director of Talent at Dental Care Alliance, Director of Strategic Development at the International Business Innovation Association (InBIA), and Director of Strategic Planning & Development with the Great Job Spot Network. HD has previously served as the President-Elect, Conference Director, Secretary, Treasurer, Emcee and other roles for the conference. Heather earned a Bachelor of Science in General Business and a Master of Science in Management with a concentration in Human Resources at the University of Central Florida. Go Knights!

Vaping – some people despise it, others enjoy it, while many do not understand it. However, vaping is no longer a trend to be dismissed as something “the kids are doing these days.” Vaping has infiltrated various areas of our everyday life, including air travel, hotels and other accommodations, restaurants, and various commercial establishments. Public education institutions, particularly middle and high schools, have begun revising their tobacco rules to prohibit vaping on school grounds. It naturally follows that employers should begin considering how to address vaping in light of evolving laws.

To understand the impact of vaping on your workplace, employers should start from the beginning: what is vaping? Vaping is the act of inhaling and exhaling aerosol, or “vapor,” emitted by an e-cigarette, vape pen, or like device. Breathing into the device activates a battery, which heats up the heating component. In turn, the heating component converts the e-liquid into an aerosol, which the user inhales into the lungs and exhales into the air. Conventionally, the e-liquid, or “e-juice,” is comprised of nicotine laced with propylene glycol or vegetable glycerin-based liquid, as well as some flavoring agent. The most popular vaping product to date is the JUUL, with a high quantity of nicotine equivalent to an entire pack of cigarettes.

In the past two years, regulators have concentrated on curbing vaping among adolescents. Florida lawmakers have been relatively silent about vaping in the workplace until recently. On April 29, 2019, Governor Ron DeSantis signed SB 7012, which prohibits vaping in an enclosed indoor workplace and requires proprietors to implement policies and procedures regarding smoking and vaping in their facility. Violators face a $25 fine, 50 hours of community service, or mandatory participation in an anti-tobacco “alternative to suspension” program. The new law is effective beginning July 1 of the next fiscal year.

Still, the general fog around workplace vaping creates liability risks for employers uncertain how federal, state, and local laws and regulations will interact with this evolving technology. Until employers receive more guidance from Florida lawmakers, employers should be mindful of potential liability, particularly in the following areas.

Vaping and the ADA

SB 7012 mirrors Florida’s Clean Indoor Air Act (2013), which prohibits smoking tobacco products in most public and private business, including the workplace. Therefore, employers should expect compliance to mirror the requirements of the Clean Indoor Air Act. To start, employers will need to update signage to specify indoor vaping limitations. While the Clean Indoor Air Act does not mandate employers to accommodate employees that smoke any substance, employers should prepare to designate a smoking area that is impermeable by secondhand smoke. By limiting vaping to designated smoking areas, employers minimize the risk of jeopardizing other employees’ medical conditions, which may be aggravated by the chemicals in vape smoke. To this end, small facilities may consider clarifying that a designated smoking area covers tobacco and vape smoking.

The unknown question is how vaping regulations will interact with Florida’s other recently enacted regulation – Florida’s medical marijuana law, §381.986, Florida Statutes. These worlds will inevitably collide because tetrahydrocannabinol (“THC”) is available in an e-liquid form for vaping products. THC is a chemical agent creating an intoxicating, hallucinogenic effect when consumed. Therefore, employees vaping THC e-liquids in the workplace may be in conflict with an employer’s Drug-Free Workplace policy and create workplace safety concerns.

Unlike marijuana cigarettes, bongs, and other marijuana paraphernalia, THC e-liquid will be difficult to detect if smoked via a vaping product. Accordingly, employers should anticipate implementing policies and procedures to regulate the nature of the vaping substance.

Employees Under Age 21

On April 5, 2019, the Florida Senate introduced HB 7119, raising the minimum age from 18 to 21 for purchasing tobacco and vaping products. The House bill exempts active duty military members from this regulation. Six other states have implemented similar legislation, including California, New Jersey, and Massachusetts, and five more have passed laws to implement this change within two years.

Currently, the bill does not create a duty to report the use of vaping products by individuals under age 21. However, employers should be aware that raising the minimum age might create a black market for the purchase of vaping product, which may spill into the workplace. Reminiscent of the Prohibition Era, this scenario may create liability for employers who know or reasonably should have known that vaping products are being sold to employees under the minimum age on the employer’s facility.

Regulators are tackling vaping from various angles, many of which have significant implications for Florida employers. As the ever-growing vaping industry continues to develop new products, employers should closely monitor the new legislation and case law for guidance on how to modify its policies and procedures in compliance with the law.

Iggy Garcia focuses his practice exclusively on representing employers with their labor and employment needs. He has extensive experience in both federal and state courts representing employers. He has defended both individual and collective actions under numerous state and federal employment laws, including Title VII, the ADEA, the ADA, FMLA, FLSA, Florida’s private whistle blower statute, and all manner of retaliation claims. Mr. Garcia has also defended employment related torts such as defamation, negligent retention, negligent hiring, assault, battery and fraud, as well as all manner of breach of contract claims. Mr. Garcia has handled numerous trials and administrative hearings.

Mr. Garcia has been featured as a speaker at numerous human resources and legal conferences throughout Florida.

Mr. Garcia also represents employers in front of numerous administrative agencies such as the EEOC and the Florida Commission On Human Relations.

Mr. Garcia regularly advises employers on numerous day to day matters related to their employees both domestically and internationally. He emphasizes a practical approach to problem solving while decreasing an employer’s exposure to potential liabilities. Mr. Garcia’s fluency in Spanish further allows him to address employee issues where language barriers would otherwise prevent such.

Karen Smeda focuses her practice on representing and counseling employers in labor and employment law matters. Ms. Smeda developed her interest in labor and employment law while working as residential staff for the West Campus Housing System, where she became familiar with the policies and procedures used by large employers, like Cornell University. She also worked as a 2L law clerk for the U.S. Department of Labor during the summer of 2017.

Ms. Smeda graduated from Cornell Law School in 2018. During law school, she served as the Senior Notes Editor for the Cornell International Law Journal, a Managing Editor for the LII Supreme Court Bulletin, and on the Moot Court Board. She also participated as a member of Martha Pollack’s Presidential Task Force, serving on a sub-committee informing Cornell University’s response to hate speech and harassment on campus. Ms. Smeda graduated from the University of Florida summa cum laude with a B.S. in Psychology and a B.A. in Criminology in 2012. She also graduated from Cornell University with an M.A. in Human Development in February 2016.

As the daughter of two Ecuadorian parents, Karen is a native Spanish speaker.

With the college football championship and Super Bowl just behind us, fans are looking forward to next season with optimism for a winning record and possible championship for their team. During the offseason, teams often address weaknesses as they look for the right formula on defense, offense and special teams that will lead to success. In order for a human resources game plan to be successful, it’s also important that your defense, offense and special teams be ready for the challenges of today and tomorrow. As you build your team, here are some suggestions for success:

DEFENSE

Conventional wisdom holds that “defense wins championships.” Developing a plan for compliance with the employment regulations and laws is essential to establishing a foundation for human resources success. Here are some defensive steps we recommend to employers:

Conduct an Employment Law Compliance Review – Given the tremendous liability and continued expansion of employment related claims, it makes sense to conduct an employment law compliance review on a regular basis. This can be performed internally or with the assistance of your employment law counsel. Proactive risk management reduces immediate exposure and represents the best strategy to combat the frequency and cost of employment related litigation

Pay Employees Fairly at the Time of Separation – Many lawsuits and Department of Labor complaints are generated because of confusion or animosity over payroll issues at the time of termination. In general, resolve pay disputes in favor of the employee. While it may cost a little more in the short term, you will save time, money and headaches in the long run.

OFFENSE

In the past, many human resources professionals operated in a defensive manner; namely, this involved reacting to perceived threats or identified exposure points. Now, it is vital for employers to take certain proactive steps to reduce liability. Consider the following when developing your offensive strategy:

Regular Training Covering EEO and Harassment– Based on a series of Supreme Court cases and guidance from the EEOC, employers are afforded a measure of protection by: (1) implementing and communicating harassment and discrimination policies, (2) establishing an effective complaint and investigative process, and (3) training managers and employees regarding the employer’s professional conduct expectations. If an employer takes steps to exercise reasonable care and an employee does not take advantage of the complaint procedure, the employer’s likelihood of prevailing in a discrimination or sexual harassment lawsuit is significantly increased.

Investigate Complaints in a Timely Manner and Document Your Actions – The findings of the investigation are vitally important. However, the process of investigating demonstrates the level of seriousness with which such issues are afforded and shows that the employer is meeting its reasonable care obligation.

Employee Attitude Survey – Discrimination and other employment complaints are often rooted in other job-related concerns and problems. An employee opinion survey gets to the root of the problem and eliminates the need for an employee to take his or her complaint to an outside agency.

Proactive Documentation – Make sure that your human resources files and related documentation accomplish a two-fold purpose. First, it lets an employee know that their performance or conduct is not acceptable. Second, the personnel file becomes the basis from which employment decisions are defended and it’s important to make sure that files accurately reflect the events related to employment.

By implementing these defensive, offensive and special team recommendations, you’ll be well on the way to building a winning human resources team.

This article is designed to provide general information and is not legal advice or a legal opinion based on any specific facts or circumstances. Consult your attorney regarding any specific questions you may have.

Disclaimer

Unless otherwise noted, the views expressed on HR Mouth of the South are attributed only to the author and do not necessarily reflect the views of the HR Florida State Council or the Society for Human Resources Management.